No. 04-1360
================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------BOOKER T. HUDSON, JR.,
Petitioner,
v.
STATE OF MICHIGAN,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
Michigan Court Of Appeals
---------------------------------♦--------------------------------BRIEF FOR RESPONDENT
---------------------------------♦--------------------------------KYM L. WORTHY
Prosecuting Attorney
County of Wayne
*TIMOTHY A. BAUGHMAN
CHIEF, RESEARCH, TRAINING,
AND APPEALS
1441 St. Antoine
Detroit, MI 48226
(313) 224-5792
*Attorney of Record
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
QUESTION PRESENTED
I.
A causal relationship between improper police conduct and
the discovery of evidence is indispensable – though not
necessarily sufficient – to a determination that exclusion
is appropriate. Contraband discovered during a search of
proper scope under a valid warrant, but after a police error
in carrying out principles of announcement, is the fruit of
the judicially authorized invasion of privacy, not the
improper manner of entry. Does the Fourth Amendment
require the exclusion of evidence because of a violation of
principles of announcement despite a lack of causal
connection between any police error and the discovery of
the contraband?
ii
TABLE OF CONTENTS
Page
Question Presented ........................................................
i
Table of Authorities ........................................................
iii
Statement of the Case....................................................
1
Summary of Argument...................................................
2
Argument........................................................................
4
I.
The Fourth Amendment does not require the
exclusion of evidence because of a violation of
principles of announcement because there is
no causal connection between any police error
and the discovery of the evidence ......................
4
A. Introduction .................................................
4
B. The Exclusionary Rule: Its Origins, Purpose, and Limits ..........................................
6
(1) Origins and Purpose ..............................
6
(2) Limitations on the Exclusionary Rule:
The Requirement of Causation .............
12
(3) Conclusion ..............................................
17
C. Announcement and Exclusion of Evidence...
18
(1) The Law Before Wilson v. Arkansas .....
18
(2) Wilson v. Arkansas: Announcement,
Causation, and Use of the Exclusionary Rule as a Scalpel .............................
23
D. Causation is a Necessary Predicate for Exclusion ..........................................................
32
Conclusion ......................................................................
37
iii
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Adams v. New York, 192 U.S. 585 (1904) ............................ 8
Aponte Matos v. Toledo Davila, 135 F.3d 182 (CA 1,
1998)................................................................................ 34
Artis v. United States, 802 A.2d 959 (D.C., 2002) ............. 27
Boyd v. United States, 116 U.S. 616 (1886)..................... 6, 8
Couch v. United States, 409 U.S. 322 (1973)....................... 9
Early v. Bruno, 2001 WL 775968 (ND Ill., 2001).............. 34
Elkins v. United States, 364 U.S. 206 (1960) .................... 10
Gould v. Davis, 165 F.3d 265 (CA 4, 1998) ........................ 34
Green v. Butler, ___ F.3d ___, 2005 WL 2018888 (CA
7, 2005)............................................................................ 34
Holland ex rel. Overdorff v. Harrington, 268 F.3d
1179 (CA 10, 2001).......................................................... 34
Ingram v. City of Columbus, 185 F.3d 579 (CA 6,
1999)................................................................................ 34
Johnson v. City of Aiken, 217 F.2d 839 (CA 4, 2000) ........ 34
Johnson v. Deep East Texas Regional Narcotics
Trafficking Task Force, 379 F.3d 293 (CA 5, 2005) ....... 34
Johnson v. Louisiana, 406 U.S. 356 (1972)....................... 14
Kornegav v. Cottingham, 120 F.3d 392 (CA 3, 1997) ........ 34
Mapp v. Ohio, 367 U.S. 643 (1961)................................ 9, 10
Massachusetts v. Sheppard, 468 U.S. 981 (1984) ............. 16
Michalik v. Herman, 2003 WL 2180537 (ED LA,
2003)................................................................................ 34
Miller v. United States, 357 U.S. 301 (1958)......... 19, 21, 22
iv
TABLE OF AUTHORITIES – Continued
Page
Murray v. United States, 487 U.S. 533 (1988) ............ 15, 30
Nardone v. United States, 308 U.S. 338 (1939)................. 13
New York v. Harris, 495 U.S. 14 (1990)....................... 22, 24
Nix v. Williams, 467 U.S. 431 (1984)........................... 14, 28
Payton v. New York, 445 U.S. 544 (1980) .................... 21, 24
Pennsylvania Board of Parole v. Scott, 524 U.S. 357
(1998) .............................................................................. 10
Rakas v. Illinois, 439 U.S. 128 (1978) ............................... 13
Ramirez v. United States, 91 F.3d 1297 (CA 9, 1996) ....... 29
Sabbath v. United States, 391 U.S. 585 (1968) ........... 20, 21
Segura v. United States, 468 U.S. 796 (1984) ....... 15, 29, 30
Silverthorne Lumber v. United States, 251 U.S. 385
(1920) .............................................................................. 30
Smith v. Stone, 40 Fed. Appx. 197, 2002 WL
1478619 (CA 6, 2002) ..................................................... 34
State v. Nelson, 691 N.W.2d 218 (N.D. 2005) .................... 27
Stone v. Powell, 428 U.S. 465 (1976) ................................. 10
Terry v. Ohio, 392 U.S. 1 (1968)......................................... 10
Turner v. Tomey, 94 F. Supp. 2d 966 (Ind., 2000).............. 34
United States v. Blaze, 143 F.3d 585 (CA 10, 1998) .......... 28
United States v. Calandra, 414 U.S. 338 (1974) ......... 10, 13
United States v. Ceccolini, 435 U.S. 268 (1978) ................ 14
United States v. Dice, 200 F.3d 978 (CA 6, 2000)................ 5
United States v. Doe, 465 U.S. 605 (1984)........................... 9
v
TABLE OF AUTHORITIES – Continued
Page
United States v. Espinoza, 256 F.3d 718 (CA 7,
2001).................................................................................. 5
United States v. Fialk, 5 F.3d 250 (CA 7, 1993) ................ 31
United States v. Gravens, 129 F.3d 974 (CA 7, 1997) ....... 31
United States v. Hendrixson, 234 F.3d 494 (CA 11,
2000)................................................................................ 27
United States v. Janis, 428 U.S. 433 (1978)...................... 16
United States v. Jones, 149 F.3d 715 (CA 7, 1998)..... 5, 32, 33
United States v. La Jeune, 26 F. Case 832 (CCD
Mass., 1822) (No 15,551).................................................. 7
United States v. Langford, 314 F.3d 892 (CA 7, 2002) .......... 5
United States v. Le, 173 F.3d 1258 (CA 10, 1999) ............. 25
United States v. Leon, 468 U.S. 897 (1984) ................. 10, 17
United States v. Markling, 7 F.3d 1309 (CA 7, 1993) ....... 31
United States v. Medlin, 842 F.2d 1194 (CA 10, 1988).. 25, 26
United States v. Mendez, 315 F.3d 132 (CA 2, 2002) ........ 28
United States v. Pulliam, 405 F.3d 782 (CA 9, 2005) ... 12, 31
United States v. Ramirez, 523 U.S. 65 (1998) ................... 29
United States v. Reed, 726 F.2d 339 (CA 7, 1984) ............. 26
United States v. Sears, 411 F.3d 1124 (CA 9, 2005) .......... 26
Weeks v. United States, 232 U.S. 383 (1914) ....................... 9
Wilson v. Arkansas, 514 U.S. 927 (1995)........... 4, 18, 23, 27
Wolf v. Colorado, 338 U.S. 25 (1949) ................................... 9
Wilson v. Layne, 526 U.S. 603 (1999) .............. 26, 27, 33, 34
Wong Sun v. United States, 371 U.S. 471 (1963) ..... 13, 14, 33
vi
TABLE OF AUTHORITIES – Continued
Page
STATE AND ENGLISH CASES
Camacho v. State, 75 P.3d 370 (Nev., 2003) ...................... 28
Commonwealth v. Dana, 43 Mass. 329 (1841) .................... 7
Entick v. Carrington, 19 Howell’s State Trials 1029
(1765) ................................................................................ 6
Ettipio v. State, 794 S.W.2d 871 (Tex. App., 1990) ............ 28
Klingenstein v. State, 624 A.2d 532 (Md., 1993) ........... 4, 25
People v. Defore, 150 N.E. 585 (N.Y., 1926)........................11
People v. Stevens, 460 Mich. 626 (2000) ........................ 5, 32
Semayne’s Case, 77 Eng. Rep. 194 (1603) ........................... 6
State v. Klingenstein, 608 A.2d 792 (Md. App., 1992)......... 4
State v. Lee, 374 Md. 275, 821 A.2d 922 (Md., 2003) .......... 5
State v. Martinez, 579 N.W.2d 144 (Minn. App.,
1998)................................................................................ 29
State v. Nelson, 691 N.W.2d 218 (N.D., 2005) ................... 27
State v. Spotted Horse, 462 N.W.2d 463 (S.D., 1990)........ 26
State v. Sundberg, 611 P.2d 44 (Alaska, 1980).................. 26
Wilkes v. Wood, 19 Howell’s State Trials 1153 (1763) ......... 6
Winfrey v. State, 78 P.3d 725 (Alaska App., 2003) ............ 26
FEDERAL STATUTES
18 U.S.C. § 3109 ........................................................... 20, 21
42 U.S.C. § 1983 ................................................................. 34
vii
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITY
Amsterdam, “Search and Seizure and Section 2255:
A Comment,” 420 Pa. L. Rev. 378, 388-389 (1964).........11
1 Greenleaf, A Treatise on the Law of Evidence
(14th ed., 1884) ................................................................. 7
5 LaFave, Search and Seizure (3rd Ed.) ........................... 12
6 LaFave, Search and Seizure (4th Ed.) ........................... 27
4 Wigmore, Evidence (2d Ed. 1923)..................................... 8
Bradford P. Wilson, “The Fourth Amendment as
More Than a Form of Words: The View from the
Founding,” in Hickok, editor, The Bill of Rights
(University Press of Virginia, 1991) ................................ 8
1
STATEMENT OF THE CASE
At 3:35 in the afternoon of August 27, 1998, Detroit
police officers executed a search warrant for narcotics and
weapons at a residence in Detroit. J.A. 4-5. The first
officer to the door, the “shotgun man,” J.A. 17, testified
that the officers yelled “police, search warrant” as they
approached the premises. J.A. 19. It took “maybe three to
five seconds” before the premises were entered; this
occurred “real fast.” J.A. 19. The officer did not wait for
someone to answer the door, Pet. App. 9, nor did he hear
anything inside the premises before entering. Pet. App. 8.
The “shotgun man” officer entered by simply opening the
door and going inside. J.A. 19. This officer had been shot
at previously in the execution of search warrants. J.A. 20.
Petitioner was discovered to have five rocks of crack
cocaine in his pocket when searched by this same officer.
Pet. App. 7. At this time petitioner was in custody, as
individually wrapped rocks of crack cocaine in a plastic
bag had been discovered in the chair where he had been
1
sitting. He was convicted for possession based on the
cocaine found on his person.
Before trial, an evidentiary hearing was held on
petitioner’s claim that the officers executing the warrant
had failed to wait a reasonable period after announcing
their presence and purpose. Pet. App. 6; J.A. 9. Though the
1
Though not germane to petitioner’s Fourth Amendment claim
and thus not explored by petitioner at the motion to suppress, simply
for purposes of clarification it should be noted that after the entry was
made petitioner was directed to stand, contraband was found where he
had been sitting, and he was arrested. The rocks of crack cocaine for
which he was convicted were found on his person in a search after that
arrest, as revealed at trial. Trial Transcript I, 11-12, 16, 26, 34.
2
Michigan Supreme Court had held that exclusion is not
permitted for this sort of violation, the trial judge suppressed and dismissed nonetheless. The Michigan Court of
Appeals peremptorily reversed this decision, Pet. App. 4,
and the Michigan Supreme Court denied leave to appeal.
Pet. App. 5. Petitioner was then convicted at a bench trial.
J.A. 21-22. That conviction was affirmed by the Michigan
Court of Appeals, the announcement issue rejected on the
ground that the prior order of that court was the law of the
case. Pet. App. 1-2. Leave to appeal was denied by the
Michigan Supreme Court. Pet. App. 3. This Court then
granted petitioner’s petition for certiorari.
---------------------------------♦--------------------------------SUMMARY OF ARGUMENT
The purpose of the exclusionary rule, which is itself
not constitutionally mandated, is to serve as a deterrent
sanction, inhibiting violation of the Fourth Amendment by
depriving the government of the fruits of a violation. The
exclusionary rule is not remedial, and it is not a personal
right of the defendant.
Even where there are “fruits” of the improper action of
the police, the exclusionary rule is not applied unthinkingly. Rather, in a number of circumstances, despite “butfor” causation – where the evidence or contraband discovered flows as an effect from a cause – exclusion is not
mandated. Purged taint, attenuation, standing, inevitable
discovery, and several other doctrines demonstrate that
but-for causation is not always sufficient to require the
sanction of suppression. That said, but-for causation is
necessary to the sanction of suppression; in its absence,
suppression is not ordered, as if there are no fruits of the
3
police error – if the evidence or contraband is not come by
through “exploitation” of the “primary illegality” – exclusion is not justified under this Court’s precedents.
Where the police execute a properly obtained search
warrant and discover evidence or contraband in a search of
proper scope and intensity, the evidence or contraband
discovered is the fruit of the execution of that judicial
command. When the police err in carrying out principles of
announcement, either by failing to announce, or, as here, by
announcing but failing to wait a sufficient period, the
nonconsensual entry can have no “fruit” with regard to any
evidence or contraband discovered, as there is a causal
disconnect between the error of the police and that which is
discovered in the search. Only if announcement is meant to
give those inside a reasonable opportunity to hide or destroy the evidence, or injure the officers, can the evidence
discovered be said to be anything other than the fruit of the
search of proper scope under the valid warrant. The entry is
unreasonable under the Fourth Amendment, but whatever
fruit it has, be it a broken door, or, in an unfortunate case,
unnecessary injury to persons (none of which occurred in
the present case), that fruit does not include the evidence or
contraband found in the search, and may be redressed by
other means, if needs be. That an error in announcement in
the execution of a warrant violates the Fourth Amendment
does not invalidate the search in total; indeed, precedent
from this Court as well as other courts in analogous circumstances demonstrates that if the evidence is not come at by
exploitation of the primary illegality, here the failure to
wait long enough after announcing – if the evidence is not,
then, causally connected to that illegality, as an effect from
a cause – exclusion is inappropriate. So here.
---------------------------------♦---------------------------------
4
ARGUMENT
I.
The Fourth Amendment does not require the
exclusion of evidence because of a violation of
principles of announcement because there is
no causal connection between any police error
and the discovery of the evidence.
“The . . . exclusionary sanction [is] . . . a carefully
controlled scalpel rather than . . . an indiscrimi2
nate blunderbuss. . . .”
A. Introduction
3
In Wilson v. Arkansas this Court declined to reach the
question of whether an exclusionary sanction is appropriate for a violation of announcement principles, that issue
not then properly before the Court:
Respondent and its amici also ask us to affirm
the denial of petitioner’s suppression motion on
an alternative ground: that exclusion is not a
constitutionally compelled remedy where the unreasonableness of a search stems from the failure
of announcement. . . . [R]espondent and its amici
argue that any evidence seized after an unreasonable, unannounced entry is causally disconnected from the constitutional violation and that
exclusion goes beyond the goal of precluding any
benefit to the government flowing from the constitutional violation. Because this remedial issue
was not addressed by the court below and is not
within the narrow question on which we granted
2
State v. Klingenstein, 608 A.2d 792, 800 (Md. App., 1992) (Moylan,
J.) (aff ’ d in part, rev’d in part on other grounds, Klingenstein v. State,
330 Md. 402, 624 A.2d 532 (Md., 1993)).
3
Wilson v. Arkansas, 514 U.S. 927, 937 (1995).
5
certiorari, we decline to address these arguments.
The Michigan Supreme Court has held that exclusion
4
is inappropriate in this circumstance, a position also
taken by the United States Court of Appeals for the
5
Seventh Circuit. In asking this Court to reach a contrary
conclusion, petitioner in effect requests this Court to cut
the application of the exclusionary rule loose from its
6
doctrinal moorings, and creates a straw-man “inevitable
discovery” opponent which he then attacks. But the issue
here is causation not inevitable discovery; this Court has
never found application of the Fourth Amendment exclusionary rule appropriate where there is no but-for causal
relationship between the police error involved and the
seizure of evidence. It should not do so here. This Court
should reject petitioner’s invitation to apply the exclusionary rule as an indiscriminate blunderbuss rather than a
carefully controlled scalpel. That it should do so is counseled by the Court’s own precedents concerning the nature
and purpose of the rule, as well as concerning its application, and also the lack of exclusion in analogous situations.
4
People v. Stevens, 460 Mich. 626, 631, cert. den., 528 U.S. 1164
(2000).
5
See United States v. Espinoza, 256 F.3d 718, 726 (CA 7, 2001);
United States v. Langford, 314 F.3d 892, 894 (CA 7, 2002); United States
v. Jones, 149 F.3d 715, 716-17 (CA 7, 1998).
6
As several courts have done, see, e.g., State v. Lee, 374 Md. 275,
821 A.2d 922 (Md., 2003); United States v. Dice, 200 F.3d 978 (CA 6,
2000).
6
B. The Exclusionary Rule: Its Origins, Purpose,
and Limits
(1) Origins and Purpose
It cannot be gainsaid that the purpose of the exclusionary rule is to deter improper police conduct by denying
the Government of the fruit of that conduct; thus, Respondent will not labor long to illustrate that point. While the
Fourth Amendment itself has roots in such cases as Wilkes
7
8
9
v. Wood, Entick v. Carrington, and Semayne’s Case, none
of these cases resulted in the exclusion of evidence from a
criminal proceeding, being rather, for the most part, civil
cases to recover damages. Not until almost 100 years after
the adoption of the Fourth Amendment did the notion of
exclusion of evidence for its violation appear in our juris10
prudence, in the case of Boyd v. United States. Indeed,
the contrary of the proposition that evidence should be
excluded from trial based on the manner of its acquisition
was well-established by the time of the Boyd decision.
Professor Greenleaf listed among those doctrines of evidence which were “common to all the United States” that:
7
Wilkes v. Wood, 19 Howell’s State Trials 1153 (1763).
8
Entick v. Carrington, 19 Howell’s State Trials 1029 (1765)
(upholding a verdict for trespass against the officers executing a
general warrant).
9
Semayne’s Case, 77 Eng. Rep. 194, 195 (1603) (specifically
concerning forcible entries into dwellings, and stating that “in all cases
when the King is party, the sheriff (if the doors be not open) may break
the party’s house, either to arrest him, or to do other execution of the
K(ing)’s process, if otherwise he cannot enter. But before he breaks it,
he ought to signify the cause of his coming, and to make request to open
doors. . . .”).
10
Boyd v. United States, 116 U.S. 616 (1886).
7
. . . though papers and other subjects of evidence
may have been illegally taken from the possession of the party against whom they are offered,
or otherwise unlawfully obtained, this is no valid
objection to their admissibility if they are pertinent to the issue. The court will not take notice
how they were obtained, whether lawfully or
unlawfully, nor will it form an issue to determine
11
the question.
12
And in United States v. La Jeune Justice Story, sitting as
circuit justice, rejected an argument that evidence should
not be admitted because unlawfully seized, remarking that
“ . . . the law deliberates not on the mode, by which [evidence] has come to the possession of the party, but on its
value in establishing itself as satisfactory proof.” This
opinion, along with that of Justice Wilde of the Supreme
Judicial Court of Massachusetts in Commonwealth v.
13
Dana that
[i]f the search warrant were illegal, or if the officer serving the warrant exceeded his authority,
the party on whose complaint the warrant issued, or the officer, would be responsible for the
wrong done; but this is no good reason for excluding the papers as evidence, if they were pertinent
to the issue. . . . [T]he court can take no notice
how they were obtained, whether lawfully or
unlawfully; nor would they form a collateral issue to determine that question,
11
1 Greenleaf, A Treatise on the Law of Evidence (14th ed., 1884),
§ 254a, p.325-326.
12
United States v. La Jeune, 26 F. Case 832, 842 (CCD Mass.,
1822) (No 15,551).
13
Commonwealth v. Dana, 43 Mass. 329, 337 (1841).
8
were “invoked as authority for like decisions in other state
courts” and “relied on by federal courts to justify the
admission of books and papers into evidence, regardless of
14
the legality of their seizure.” Case reports from almost
the first 100 years of the existence of the Fourth Amendment reveal a number of actions alleging a wrongful
search or seizure, with “traditional common-law forms of
action associated with trespass . . . without exception, the
15
modes of redress invoked.” The Fourth Amendment was
not ignored; rather, “the requirements of due process and
of nonarbitrary searches and seizures lived in harmony in
the thought of the Founders. In that same jurisprudence,
16
however, the exclusionary rule has no life at all.” And
then came Boyd, for the first time excluding evidence
17
obtained as the result of the manner of its acquisition.
Boyd’s Fifth Amendment/Fourth Amendment amalgam rationale for exclusion of evidence no longer obtains.
18
Indeed, 18 years later this Court in Adams v. New York
rejected a challenge to evidence seized under a search
warrant by simply declaring that courts will not inquire
into the means by which evidence otherwise admissible
was acquired, distinguishing Boyd on its Fifth Amendment
rationale by limiting it to situations where a “positive act”
14
Bradford P. Wilson, “The Fourth Amendment as More Than a
Form of Words: The View from the Founding,” in Hickok, editor, The
Bill of Rights (University Press of Virginia, 1991), p. 151, 169.
15
Wilson, at 165.
16
Wilson, at 169.
17
As Dean Wigmore said, the doctrine that evidence could not be
excluded because of the manner of its acquisition “was never doubted
until the appearance of the ill-starred majority opinion of Boyd v.
United States. . . .” 4 Wigmore, Evidence (2d Ed. 1923) § 2184, p. 632.
18
Adams v. New York, 192 U.S. 585 (1904).
9
19
of production on the part of the defendant was required.
20
But in Weeks v. United States this Court first held that
evidence may be excluded on the ground of the method of
its seizure, established not in the context of a motion to
suppress in the criminal case, but a motion for return of
property before trial on the ground that the government
had no right to possess it, with the same result – the loss
of the government’s ability to offer the items as evidence at
the criminal trial. Here the rationale for exclusion had no
Fifth Amendment basis; rather, said this Court, “[t]he
tendency of those who execute the criminal laws of the
country to obtain conviction by means of unlawful seizures
. . . should find no sanction in the judgment of the
courts. . . . To sanction [an unlawful invasion of the dwelling] would be to affirm by judicial decision a manifest
neglect, if not an open defiance, of the prohibitions of the
Constitution. . . . ” In short, the evidence was excluded to
prevent the Government from obtaining an advantage
through a violation of the Constitution by excluding
evidence obtained as a result of – by a causal connection to
– that violation.
Extension of this exclusionary rule to the states was
found inappropriate in Wolf v. Colorado, in an opinion
21
written by Justice Frankfurter. But Wolf did not long
22
survive, as in Mapp v. Ohio the rule of Weeks was applied
19
Today, this situation is treated in some circumstances by a Fifth
Amendment right to avoid having mention that the defendant was the
one who produced the items, rather than a Fourth Amendment right to
avoid producing them. See United States v. Doe, 465 U.S. 605 (1984);
Couch v. United States, 409 U.S. 322, 327 (1973).
20
Weeks v. United States, 232 U.S. 383 (1914).
21
Wolf v. Colorado, 338 U.S. 25, 27-28 (1949).
22
Mapp v. Ohio, 367 U.S. 643 (1961).
10
to the States as a “deterrent safeguard . . . ”, the Court
23
also quoting approvingly from Elkins v. United States
that “[t]he rule is calculated to prevent not to repair. Its
purpose is to deter . . . by removing the incentive to disre24
gard it.” From the beginning, then, the emphasis has
been on deterrence by depriving the government of the
“fruits” gained from the improper police conduct. It is now
beyond dispute that the exclusionary rule is not “part and
parcel” with the Fourth Amendment, but rather is “a
judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect,
rather than a personal constitutional right of the party
25
aggrieved.” Most recently this Court in Pennsylvania
26
Board of Parole v. Scott held that the exclusionary rule
does not apply at parole violation hearings, the Court
observing that the admission of illegally seized evidence
does not violate the Constitution; rather, the Fourth
Amendment is violated when the illegal search occurs. The
exclusionary rule is instead a judicially created means of
deterring illegal searches and seizures, which has societal
costs and is therefore not to be applied unthinkingly.
27
Indeed, Chief Justice Warren remarked in Terry v. Ohio
that:
The exclusionary rule has its limitations as a tool
of judicial control. . . . [In] some contexts the rule is
ineffective as a deterrent. . . . Proper adjudication
23
Elkins v. United States, 364 U.S. 206 (1960).
24
Mapp, at 657.
25
United States v. Calandra, 414 U.S. 338 (1974). See also Stone v.
Powell, 428 U.S. 465 (1976); United States v. Leon, 468 U.S. 897 (1984).
26
Pennsylvania Board of Parole v. Scott, 524 U.S. 357 (1998).
27
Terry v. Ohio, 392 U.S. 1, 3-15 (1968).
11
of cases in which the exclusionary rule is invoked
demands a constant awareness of these limitations. . . . [A] rigid and unthinking application of
the . . . rule . . . may exact a high toll in human
injury and frustration of efforts to prevent crime.
The purpose of the rule, then, is not to repair, but to
deter, and it does so by depriving the government of that
which was gained as a result of the improper conduct of
the police – that which flows from it as an effect from a
cause (though not inevitably, causation being necessary
but not always sufficient). Application of the rule carries
with it a high societal cost in damaging the trial as a
search for truth by excluding reliable and probative
28
evidence, and it is thus not to be applied reflexively. As
one commentator has well put it, “[g]ranted that so many
criminals must go free to deter the constable from blundering, pursuance of this police of liberation beyond the
confines of necessity inflicts gratuitous harm on the public
29
interest.” What is a “thinking” application of the rule
which at least attempts in some measure to avoid the
infliction of gratuitous harm on the public? What are its
current limits?
28
After all, any rule opposed – either entirely, or as to its extension
to the states – by such giants as Justices Frankfurter, Harlan, and
Cardozo – deserves careful scrutiny in its application (Justice Cardozo
opposed the rule when sitting as a state judge in New York, where he
made his famous statement “[T]he criminal is to go free because the
constable has blundered.” People v. Defore, 150 N.E. 585, 587 (N.Y.,
1926)).
29
Amsterdam, “Search and Seizure and Section 2255: A Comment,”
420 Pa. L. Rev. 378, 388-389 (1964).
12
(2) Limitations on the Exclusionary Rule: The
Requirement of Causation
. . . [defendant] contends that . . . we must rely on
a “perverted variation” of the “inevitable discovery” exception. . . . If this case involved any “exception” to the exclusionary rule at all, it would
be the “independent source” exception. . . . We do
not, however, have to apply either “exception” in
this case because the indispensable causal connection between his detention and discovery of the
30
gun has not been met.
That “but-for” causation is a necessary but not always
sufficient element of a claim that evidence should be
excluded because of a constitutional violation by the police
is readily apparent from exclusionary rule jurisprudence.
As Professor LaFave has said, “in the simplest of Fourth
Amendment exclusionary rule cases, the challenged
evidence is quite clearly ‘direct’ or ‘primary’ in its relationship to the prior arrest or search, so that if it is determined that a Fourth Amendment violation has occurred it
is apparent that the consequence must be suppression of
that evidence in the trial of a defendant who has standing
31
to object to the violation.” But the exclusionary rule is not
applicable in all cases where the evidence at issue would
not have been discovered “but for” the improper conduct of
the police, despite its deterrent effect in these situations.
In some situations, the rule is not applied despite “but-for”
causation because its cost is too high when weighed
against its benefits.
30
United States v. Pulliam, 405 F.3d 782, 790-791 (CA 9, 2005)
(emphasis supplied).
31
5 LaFave, Search and Seizure (3rd Ed.), § 11.4, p. 231-232.
13
•
Personal Expectation of Privacy: The
Fourth Amendment protection is personal,
and though excluding evidence where the
Fourth Amendment rights of the individual
against whom the evidence is offered were
not offended might nonetheless carry with it
some deterrent effect, it has long been recognized that the “need for deterrence and
hence the rationale for excluding the evidence are strongest where the Government’s
unlawful conduct would result in imposition
of a criminal sanction on the victim of the
32
search.” The accused simply will not be
heard to complain unless it is his or her
Fourth Amendment rights that were compromised by the police.
•
Fruit of the Poisonous Tree and Purged
33
Taint: Though Nardone v. United States is
the first case to make the point that a causal
connection between improper governmental
conduct and the discovery of evidence does
not necessarily result in suppression, that
principle came to full flower in Wong Sun v.
34
United States. This Court stated that the
test for exclusion is not simply whether but
for the illegal conduct of the police the evidence sought to be excluded would not have
come to light, but whether, “granting establishment of the primary illegality, the evidence to which instant objection is made has
32
See United States v. Calandra, 414 U.S. 338, 348 (1974); Rakas
v. Illinois, 439 U.S. 128 (1978).
33
Nardone v. United States, 308 U.S. 338 (1939).
34
Wong Sun v. United States, 371 U.S. 471 (1963).
14
been come at by exploitation of that illegal35
ity. . . .” Even where there is a causal connection between the police illegality and the
discovery of evidence, where the connection
between the two has “become so attenuated
as to dissipate the taint” the evidence is ad36
missible nonetheless.
•
35
37
Inevitable Discovery: In Nix v. Williams
this Court established the “inevitable discovery” doctrine. While, the Court said, the
police may not place themselves in a better
position through impermissible conduct
than they otherwise would have been, there
is no reason to put the police and public in a
worse position than they would have been
had the constitutional violation never occurred. Where the evidence would inevitably
have been discovered it is simply not considered the fruit of the illegality – there is no
exploitation of the illegality – and thus the
illegality cannot cause its exclusion. This is
a hypothetical doctrine; the evidence was
discovered as a result of the illegal police
conduct (there is a cause and effect relationship), but the prosecution can avoid exclusion by showing, hypothetically, and by a
preponderance of the evidence, that the evidence would have been discovered if the illegality had not occurred.
Wong Sun, at 455.
36
See similarly Johnson v. Louisiana, 406 U.S. 356 (1972); United
States v. Ceccolini, 435 U.S. 268 (1978)
37
Nix v. Williams, 467 U.S. 431 (1984).
15
38
•
Independent Source: Closely related to the
fruit of the poisonous tree doctrine is the independent source doctrine – where there is
improper police conduct resulting in the discovery of evidence in a “but for” sense, but
the same evidence is come at by an independent lawful method, there is no reason to
exclude it. This is distinguishable from inevitable discovery in that inevitable discovery does not posit an actual independent
recovery of the evidence, but a hypothetical
one, which the prosecution must demonstrate would have occurred without the illegality. With the independent source doctrine
the evidence is actually obtained by a
38
method independent of the improper one.
•
Noncriminal Proceedings: Certain proceedings which are not criminal are not subject to the exclusionary rule. As already
mentioned, this Court has recently held that
the exclusionary rule does not apply to parole revocation proceedings. The exclusionary rule is a judicially created means of
deterring illegal searches and seizures
which exacts a high cost upon truth-seeking
and law enforcement objectives. Particularly
because parole is a variation of imprisonment, in itself a restraint on liberty, the
State has an overwhelming interest in compliance with terms of parole which is hampered by application of the exclusionary
rule. Moreover, parole proceedings are administrative and informal, a process which
See, e.g., Murray v. United States, 487 U.S. 533 (1988); Segura v.
United States, 468 U.S. 796 (1984).
16
would be altered by application of the exclusionary rule, requiring in some cases extensive litigation on a collateral matter. The
deterrence benefits of the rule, said the
Court, simply do not outweigh its costs in
this context. Thus, though the evidence may
be a “but-for” result of improper police conduct, it will not be excluded in such a pro39
ceeding.
•
The Good-Faith Exception: The good-faith
exception was embraced by this Court in the
companion decisions of United States v.
40
41
Leon and Massachusetts v. Sheppard.
Leon involved a search commanded by warrant, where a reviewing judge found the affidavit insufficient to show probable cause.
Sheppard also involved a search commanded
by warrant; the difficulty was that the lead
detective employed a form for controlled substances search warrants though the warrant
was not for controlled substances, and it was
insufficiently modified and as a result still
authorized a search for controlled substances. Evidence was found, then, that was
not described in the warrant application,
though described in the affidavit. This Court
found exclusion inappropriate in both circumstances, observing that whether to employ the exclusionary sanction is an issue
separate from the question of whether the
Fourth Amendment rights of the person
39
See also United States v. Janis, 428 U.S. 433 (1978) with regard
to civil actions.
40
United States v. Leon, 468 U.S. 897 (1984).
41
Massachusetts v. Sheppard, 468 U.S. 981 (1984).
17
seeking to invoke the rule were violated by
police conduct; that indiscriminate application of the exclusionary rule may well generate disrespect for the law and the
administration of justice, and so its application should be restricted to those circumstances where its deterrent purpose is most
efficaciously served; and that the deterrent
function of the rule is not served when the
evidence or contraband discovered is found
as a result of police conduct that is objec42
tively reasonable and in good faith.
(3) Conclusion
The purpose of the exclusionary rule is to deter
unlawful police conduct by preventing the Government
from obtaining any advantage from that conduct. This end
is accomplished by depriving the Government of the fruits
of improper conduct. Where evidence is discovered which
is a “direct” or “primary” result from improper police
conduct – a direct effect from a cause – then the evidence
will be excluded. But this rule of exclusion is not absolute,
for even where the evidence sought to be admitted is the
result of the improper conduct in that but for that conduct
it would not have been discovered, the evidence will
nonetheless be admissible if 1) the defendant is without
standing to complain because it was not his or her right
which was violated by the improper police conduct; 2) if the
causal connection between the improper conduct and the
discovery of the evidence is so attenuated that it can be said
that the “taint” of the improper conduct is dissipated, or,
42
Leon, at 906-922.
18
put another way, it can be said that the evidence was not
obtained by police “exploitation” of the “primary illegality”;
3) the Government can demonstrate by a preponderance of
the evidence that had the improper conduct which uncovered the evidence not occurred that evidence would have
been discovered by lawful means; 4) the same evidence
which was uncovered by the improper conduct is also
obtained through a proper independent source; 5) the
proceeding is not one to which the exclusionary rule is to
be applied; or 6) the good-faith exception to exclusion is
applicable under the circumstances.
In fine, “but-for” causation is a necessary – an indispensable – but not sufficient element of a claim that
evidence should be excluded as a result of a constitutional
violation by the Government; the interest of society in
deterring unlawful police conduct and the public interest
in having juries receive all probative evidence of a crime
are properly balanced by putting the police in the same,
not a worse, position than they would have been in if no
police error or misconduct had occurred.
C. Announcement and Exclusion of Evidence
(1) The Law Before Wilson v. Arkansas
The exclusion of evidence as a sanction for violation of
principles of announcement where the search has otherwise been proper in all respects – the warrant demonstrates probable cause, and the search is one of proper
scope and intensity – has slipped into the law almost by
stealth. Its origins show no principled analysis of its
application to a situation where causality is entirely
absent; that is, where that which has been seized and is to
be offered into evidence cannot be said in any principled
19
sense to be the “fruit” of the improper governmental
conduct, particularly where in no other circumstance is
the drastic sanction of exclusion ordered without a demonstration that at least there is a “but-for” causal relationship between the improper conduct and the discovery of
the evidence. Petitioner relies heavily on Miller v. United
43
States, and it is thus with Miller that analysis should
begin.
Clifford Reed was arrested on a Washington, D.C.
street pursuant to an arrest warrant and told a federal
narcotics agent that he had purchased heroin from Miller
through an intermediary named Shepherd. Reed was to
make another purchase from Shepherd that morning. An
undercover officer accompanied Reed, and Shepherd
agreed to obtain heroin and deliver it to the agent. Authorities followed Shepherd as he went by cab to Miller’s
apartment. Ultimately the agents went to Miller’s apartment and knocked on the door. When Miller asked who
was there they responded it was the police. Miller opened
the door only partially, with an attached door chain barring the door, and the police forced their way inside when
he began to close the door, ripping the chain off. Their
purpose was to arrest Miller, but they had no warrant to
arrest, and had not expressly demanded admission or
stated the reason for their presence. Marked money that
had been given to Reed to purchase the heroin was found
in a search of the apartment; none of it was found on
Miller’s person. The principal claim before this Court was
that Miller’s arrest was unlawful not because of a lack of
43
Miller v. United States, 357 U.S. 301 (1958).
20
probable cause, but because of the manner of entry to
achieve the arrest.
Justice Brennan writing for the court observed that
the common law had historically limited the authority of
law enforcement officers to break the door of a house to
effect an arrest, except that authority existed allowing
forcible entry to effectuate a felony arrest. What was
unclear at the common law was whether a forcible entry to
arrest for a felony required the existence of an arrest
warrant. But in any circumstance, said the Court, the
forcible entry was unlawful unless the officer first stated
his authority and purpose for demanding admission,
unless some exception existed under the circumstances. In
the case before it, the Court found that this requirement
had not been met, rendering the arrest “unlawful” and the
evidence, which again was not found on the person of
Miller, inadmissible. It must be noted that the Court was
not purporting to discover and announce a constitutional
principle; its ruling was instead premised on the law of the
District of Columbia, which all parties agreed was identical to 18 U.S.C. § 3109, which concerns on its face, however, only the execution of search warrants.
A decade later the Court considered a similar question
44
in Sabbath v. United States. Again the case involved a
drug transaction. William Jones was caught possessing
cocaine by customs agents, which he said he was to transport to a person named “Johnny” in Los Angeles. The
agents called a telephone number in his possession, and
Jones addressed the man answering as “Johnny” and said
he had “his thing” and would bring it to his apartment.
44
Sabbath v. United States, 391 U.S. 585 (1968).
21
Equipped with a listening device, Jones made the delivery.
Before he left the apartment the agents went to the
apartment door, knocked, and, receiving no response,
opened the unlocked door and proceeded inside. Sabbath
was arrested and the cocaine found under a couch cushion,
from which Sabbath was seen withdrawing his hand as
the agents entered. Though 18 U.S.C. § 3109 only concerns
entries to execute search warrants, the Court again stated
that entries to arrest “must be tested by criteria identical
to those embodied in” the statute, so that “we must look to
§ 3109 as controlling.” The Court rejected the argument
that opening an unlocked door does not violate the statute,
holding essentially that the statute prohibits “unannounced intrusions” into a dwelling for the purpose of
arrest or search. The drugs found were thus suppressed,
the Court this time not stating that the arrest of Sabbath
was improper, but that the “agents’ entry” was not “conso45
nant with federal law.”
Since Miller and Sabbath the Court has clarified
several matters. First, absent exigent circumstances, an
arrest warrant and reason to believe the person sought is
in the dwelling are necessary before a nonconsensual
entry may be made into the dwelling of that individual to
46
arrest him or her. The Fourth Amendment prohibition
against unreasonable seizures of the person is violated if,
in other words, the manner of entry into the dwelling to
achieve the arrest is improper. But the question then
arose, assuming an entry to arrest without warrant and
without exigent circumstances justifying its absence, what
45
Sabbath, at 588.
46
See Payton v. New York, 445 U.S. 544 (1980).
22
are the fruits of this entry? This question was reached in
47
New York v. Harris. There the police made an improper
entry because no arrest warrant existed, and defendant
later confessed. Under petitioner’s view of the constitution
this error of the police cannot be severed or distinguished
from that which followed, so that the arrest should have
been viewed as invalid and the confession suppressed as
the fruit of that constitutionally unreasonable arrest. This
Court did not so hold.
The holding of this Court puts the lie to petitioner’s
view of the constitution, for this Court focused on the
nature of the impropriety and whether that “primary
illegality” was “exploited” so as to obtain the evidence. The
seizure of the person was made on probable cause but
after an entry into the premises to achieve it which the
Fourth Amendment does not allow. Rather than applying
petitioner’s “one size fits all” view of Fourth Amendment
violations, this Court found that the improper entry
violated the privacy of the dwelling, causing the suppression of physical evidence discovered in the dwelling, if any,
as that evidence is gained by exploitation of the primary
illegality. But the seizure of the arrestee’s person in this
situation, so long as based on probable cause, is not gained
by exploitation of the primary illegality of the invasion of
privacy of the dwelling, so that evidence associated with
defendant’s person – his confession later to the police –
48
was not the fruit of the improper entry. Miller thus spoke
overbroadly in referring to the probable-cause based arrest
after an improper entry as illegal, as the seizure of the
47
New York v. Harris, 495 U.S. 14 (1990).
48
Harris, at 20.
23
person is proper and only the entry improper. The manner of
effectuating the seizure of the person violated the Fourth
Amendment, but because the violation that occurred was
disconnected from the evidence discovered, suppression
was inappropriate.
(2) Wilson v. Arkansas: Announcement, Causation, and Use of the Exclusionary Rule as a
Scalpel
In Wilson v. Arkansas this Court found that “[t]he
common-law knock-and-announce principle was woven
quickly into the fabric of early American law,” concluding
that “[g]iven the longstanding common-law endorsement
of the practice of announcement, we have little doubt that
the Framers of the Fourth Amendment thought that the
method of an officer’s entry into a dwelling was among the
factors to be considered in assessing the reasonableness of
a search or seizure. Contrary to the decision below, we
hold that in some circumstances an officer’s unannounced
entry into a home might be unreasonable under the
49
Fourth Amendment.” But because not properly before it,
this Court did not reach the causation issue now raised. In
avoidance of the lack of a causal connection between the
police error with regard to the manner of entry and the
discovery of evidence described in the valid warrant, the
heart of petitioner’s claim – indeed, absolutely essential to
it – is the assertion that if a search is unconstitutional in
any particular it is unconstitutional in every particular; in
other words, that it is impossible to differentiate the
component parts of a search. In petitioner’s view, then, a
49
Wilson, at 934.
24
completely unauthorized invasion of privacy of the dwelling, justified neither by warrant nor any exception to the
warrant requirement, is no different in kind from an
invasion of privacy justified by a valid judicial warrant,
where the police search within the dwelling in appropriate
places for the items sought but use arguably unnecessary
force in making their entry. But as New York v. Harris,
supra, reveals, this view is without foundation. The police
in Harris were found to have acted unreasonably in
achieving their seizure of the defendant, not because
probable cause for his arrest was lacking, but because in
executing their seizure they invaded his dwelling without
50
an arrest warrant. This Court readily distinguished
between the improper entry, and the interests protected by
that invasion, and the seizure of the person of the arrestee
on probable cause, holding defendant’s confession admissible because it related to the seizure of the person not the
invasion of the dwelling (even though one could argue that
in a “but for” sense the confession would not have been
obtained, this Court’s holding once again demonstrating
that but-for causation is a necessary but not sufficient
requirement for application of the exclusionary rule).
Harris scarcely stands alone in this regard. In the
execution of a valid search warrant the searching officers
may in the intensity of their search exceed the scope
justified by the items for which they are searching and
search in places where the items particularized in the
50
Payton does not require a search warrant for the defendant’s
dwelling to effectuate the arrest, but an arrest warrant; the case is thus
a seizure-of-the-person case, not a “search” case, and the holding of the
Court is that the manner of executing the seizure is unreasonable if
there is not both an arrest warrant and reason to believe the defendant
is in the dwelling.
25
warrant could not be found. If they do, they have executed
the warrant in an unreasonable manner. What result,
then, if the items described in the warrant are found
during the search of appropriate scope, and either nothing
is found in the portion of the search that is excessive, or
contraband or other items indicating criminality are found
in that portion of the search? If petitioner’s “unitary
theory” of warrant execution is correct, the overbroad
search renders the entire search an unreasonable search,
and so those items found that were named in the warrant
and found appropriately must be suppressed because of
the error of the police in searching places not authorized.
But that is not the law – in fact, the law is quite clearly to
the contrary. In this situation if contraband or evidence is
found during the search exceeding the scope of the warrant, then those items are suppressed; if nothing is found
during that portion of the search, then there is nothing to
suppress; but in neither circumstance is that found during
51
the search of proper scope subject to exclusion. The same
51
This is plainly the rule for “ordinary” cases of this type. See
United States v. Medlin, 842 F.2d 1194, 1199 (CA 10, 1988), recognizing
an exception to this principle; “[w]hen law enforcement officers grossly
exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into
a general warrant thereby requiring suppression of all evidence seized
under that warrant.” But even this exception to the general rule that
exclusion is inappropriate is not universally followed. See Klingenstein
v. State, 624 A.2d 532, 537 (Md., 1993) (“Although courts in other
jurisdictions have discussed the exception, our attention has been called
to only two cases in which the flagrant disregard concept has been
applied to suppress all of the fruits of a search, both those constitutionally seized as well as those beyond the scope of the warrant. United
States v. Medlin. . . . We are not persuaded to overlay the exclusionary
rule of the Fourth Amendment with the ‘flagrant disregard’ concept.
The Supreme Court has not seen fit to do so and neither do we”). And
see United States v. Le, 173 F.3d 1258, 1269 (CA 10, 1999), recognizing
(Continued on following page)
26
result obtains if the warrant itself is overbroad in its
description of items to be seized. It is well-established that
those items seized which were described with sufficient
particularity will be admitted, a doctrine impossible under
52
petitioner’s theory of the Fourth Amendment.
Similarly, officers effectuating an arrest, either under
warrant or without warrant, but in either case with
probable cause, might err in their use of force in achieving
that arrest. The seizure of the person of the arrestee is
justified by the Fourth Amendment in this circumstance,
but the force used is unreasonable. The manner of achieving the seizure, while subject to censure and quite possibly
damages, does not result in the suppression of evidence
found incident the seizure of the arrestee’s person, such as
by way of search incident arrest, as the discovery of that
evidence is causally disconnected from the error of the
53
police. Also, this Court has held that execution of a
search warrant is constitutionally unreasonable if the
police allow third persons unnecessary to the execution of
54
the warrant into the premises, but no exclusionary
sanction is applied to evidence recovered by the police
that the rule even in the Tenth Circuit is that ordinarily “a search is not
invalidated merely because some things are seized that are not stated
in the warrant,” the Medlin rule being applied in “very rare cases. . . .”
52
See, e.g., United States v. Reed, 726 F.2d 339, 342 (CA 7, 1984);
United States v. Sears, 411 F.3d 1124 (CA 9, 2005).
53
See, e.g., State v. Sundberg, 611 P.2d 44, 50-52 (Alaska, 1980);
Winfrey v. State, 78 P.3d 725, 729 (Alaska App., 2003); State v. Spotted
Horse, 462 N.W.2d 463, 470 (S.D., 1990).
54
Wilson v. Layne, 526 U.S. 603, 609 (1999).
27
55
during the search because of this error. The entire search
is not rendered improper by this error on the part of the
police, and the matter is left to damage suits. So also here.
Petitioner, as well as several of the cases and a few
commentators, relies heavily on a straw-man inevitable
discovery theory, positing it as the basis of the Respondent’s position, and then attacking it. But as Justice
Thomas recognized in Wilson, the argument that exclusion
does not apply here is not one of either inevitable discovery or independent source, except by analogy. The actual
argument of Respondent is that “any evidence seized after
an unreasonable, unannounced entry is causally discon56
nected from the constitutional violation.” And it is to
defeating the causation argument that petitioner’s “unitary theory” is essential, but unavailing.
Petitioner’s mocking description of Respondent’s claim
as a “if we hadn’t done it wrong, we would have done it
57
right” theory of inevitable discovery not only misdescribes Respondent’s argument, but is mistaken on its own
terms. Ordinarily, a showing that “if we hadn’t done it
wrong, we would have done it right” is sufficient under the
inevitable discovery doctrine. If, for example, the police
arrest an individual in an automobile, and, thinking they
have probable cause to search, search the vehicle beyond
those areas justified by search incident arrest principles
and discover evidence or contraband, that evidence will
55
United States v. Hendrixson, 234 F.3d 494, 497 (CA 11, 2000);
State v. Nelson, 691 N.W.2d 218, 229 (N.D., 2005); Artis v. United
States, 802 A.2d 959, 968 (D.C., 2002).
56
57
Wilson v. Arkansas, at 937.
Petitioner’s Brief at 18, quoting 6 LaFave, Search and Seizure: A
treatise on the Fourth Amendment (4th Ed.), § 11.4(a), at 272-274.
28
not be suppressed if probable cause is found lacking if it
can be shown that under standard police policy the automobile would have been impounded and an inventory
search would have occurred that would have revealed the
58
evidence or contraband in any event. The inevitablediscovery doctrine in fact does posit the rule that if it can
be shown hypothetically by a preponderance of evidence
that evidence discovered when the police “did it wrong”
would inevitably have been discovered by the police doing
it “right” in the ordinary course of events, then the evidence will not be suppressed. What the inevitablediscovery rule does not posit is that evidence is not subject
to exclusion if it can be shown that though the police “did
it wrong” they “could have done it right.” And it is this
straw-man inevitable-discovery “principle” to which
petitioner actually objects as overbroad. Surely, if the
police break into a house without a warrant or the existence of any warrant exception and search and find evidence or contraband, exclusion cannot be avoided on the
ground that probable cause existed so that the police
“could” have obtained a warrant and accomplished the
search correctly. But Nix v. Williams itself demonstrates
that evidence is admissible when it “would” inevitably
have been discovered properly though it was actually
discovered through police error. On his own terms, then,
petitioner is incorrect, as are the cases rejecting the
58
See, e.g., United States v. Mendez, 315 F.3d 132 (CA 2, 2002);
United States v. Blaze, 143 F.3d 585 (CA 10, 1998); Camacho v. State, 75
P.3d 370, 376 (Nev., 2003); Ettipio v. State 794 S.W.2d 871, 873 (Tex.
App., 1990).
29
59
principle followed by Michigan and the Seventh Circuit.
But petitioner’s terms are not the correct ones; the matter
is not one of inevitable discovery, but causation.
Analogous to the causation issue involved here is
60
Segura v. United States. The defendant was arrested on
probable cause in the lobby of his apartment building and
taken to his apartment unit by the police. When his
codefendant opened the door the police entered without
permission, and, during a limited security check of the
apartment, observed drug paraphernalia. Two agents
remained in the apartment while a search warrant was
obtained. The warrant was executed and three pounds of
cocaine, as well as other evidence, was found. The warrant
affidavit showed probable cause and was based entirely on
evidence independent of the observations made during the
improper entry into the apartment. In other words, had
that entry never occurred the warrant would still have
been issued and the search would have taken place, as the
warrant affidavit did not rely in any way on the observations in the apartment. This Court held that the properly
executed search under a warrant which was not gained
through information obtained in the unlawful entry was
an independent source for the discovery of the evidence
found in the apartment, so that discovery of the evidence
was causally disconnected from the error of the police.
59
See, e.g., Ramirez v. United States, 91 F.3d 1297 (CA 9, 1996),
rev’d United States v. Ramirez, 523 U.S. 65 (1998); State v. Martinez,
579 N.W.2d 144 (Minn. App., 1998); and cases cited by the Petitioner.
60
Segura v. United States, 468 U.S. 796 (1984).
30
61
To much the same effect is Murray v. United States.
There federal agents, believing that narcotics were being
stored in a warehouse, made an illegal entry into the
warehouse and discovered wrapped bales which they
suspected contained marijuana. The premises were kept
under surveillance while a warrant was obtained based
upon probable cause wholly independent of the improper
entry into the warehouse. The warrant was executed and
the bales seized. This Court found the case governed by
Segura and the purposes of the exclusionary rule. The
defendant attempted to limit the independent source
doctrine by arguing that it applies only to evidence which
had not been discovered at all during an improper search,
but as to that which had been discovered, suppression was
required even if the evidence was later discovered validly
through a wholly independent method. The Court found
the defendant’s description of the independent source
doctrine inconsistent with prior cases and unsound as a
matter of policy. Prior cases, including Segura, had applied
the independent source doctrine to all evidence discovered
pursuant to an independent source, whether previously
also discovered improperly or not. Indeed, Justice Holmes
had applied the doctrine to an untainted search which
acquired evidence “identical to the evidence unlawfully
62
acquired.” The basis of the independent source doctrine,
much like that of the inevitable discovery doctrine, is that
“[t]he interest of society in deterring unlawful police conduct
and the public interest in having juries receive all probative
evidence of a crime are properly balanced by putting the
61
62
Murray v. United States, 487 U.S. 533 (1988).
See Silverthorne Lumber v. United States, 251 U.S. 385 (1920)
(emphasis supplied).
31
police in the same, not a worse, position than they would
63
have been in if no police error or misconduct had occurred.”
It is in this sense, then, that the exclusionary rule is not
applied to put the police in a worse position than they
would have been if no error occurred – where it can be
demonstrated that the evidence, as a hypothetical matter,
would inevitably have been discovered in the ordinary
course of events without the police error, not that it
“could” have been discovered if the police had thought to
go at the matter a different way, without any showing that
this course would have been followed in any event if the
erroneous conduct had not occurred. And the argument
here is even stronger, for the evidence is not come at by
police error, and also then obtained independently of that
63
See, to the same effect, United States v. Markling, 7 F.3d 1309
(CA 7, 1993) (“The exclusionary rule is a sanction, and sanctions are
supposed to be proportioned to the wrong-doing that they punish . . .
(the interests of society and the accused) are properly balanced by
putting the police in the same, not a worse position than they would
have been if no police error misconduct had occurred”); United States v.
Fialk, 5 F.3d 250 (CA 7, 1993) (“applying the exclusionary rule here
‘would put the police in a worse position than they would have been
absent any error or violation’. . . . This is not the purpose of the
exclusionary rule. . . .”); United States v. Gravens, 129 F.3d 974 (CA 7,
1997). And see also United States v. Pulliam, supra, at p. 791, rejecting
a claim that the court was applying a “perverted” form of inevitable
discovery in finding the discovery of a gun in a car not causally linked
to defendant’s detention: “If this case involved any ‘exception’ to the
exclusionary rule at all, it would be the ‘independent source’ exception,
since the gun was actually found in a search of the car. . . . We do not,
however, have to apply either “exception” in this case because the
indispensable causal connection between his detention and discovery of
the gun has not been met. The requisite but-for causation is missing not
only because the gun was found as a result of the search, but because
his [defendant’s] detention simply did not contribute or lead to the gun’s
discovery.”
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discovery; rather, the police error here is causally disconnected from the discovery of the evidence in the first
instance.
D. Causation is a Necessary Predicate for Exclusion
Neither the Michigan Supreme Court nor the Seventh
Circuit approach the question here by way of petitioner’s
straw-man inevitable discovery route. Though the Michigan Supreme Court in Stevens used the term “inevitable
discovery” and also referred to the discovery of the evidence as “independent” of the violation by the police, it is
plain that the basis for the court’s decision was the causal
disconnect between the violation by the police and the
discovery of the evidence. So also the Seventh Circuit,
Judge Posner remarking in the Jones case that:
A causal link between unlawful police conduct
and a seizure is necessary but not sufficient to
justify the exclusion of reliable evidence. The
inevitable discovery doctrine . . . and the independent source doctrine . . . show that violations of the fourth amendment do not
automatically lead to suppression when the
constitutional wrong plays a causal role in the
seizure (at least, in the timing of the seizure). . . . It is hard to understand how the discovery of evidence inside a home could be
anything but ‘inevitable’ once the police arrive
with a warrant; an occupant would hardly be
allowed to contend that, had the officers announced their presence and waited longer to
33
enter, he would have had time to destroy the
64
evidence. . . .
If one asks the right question – is evidence discovered
as a result of a search of proper scope and intensity pursuant to the command of a valid warrant the effect or fruit of
the failure of the police either to announce or to wait long
enough before entering – a negative answer follows ineluctably, unless a purpose of the knock and announce requirements is to allow those inside an opportunity to
frustrate the warrant by hiding or destroying evidence or
harming the officers who are executing it. The wrong
question is whether the evidence is the effect or fruit of an
“illegal entry” or an “illegal search,” as both the entry and
the search are legal; it is the manner of entry which is
improper, and its fruit may be a broken door, or there may
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be no fruit at all. Exclusion of evidence in this circumstance cannot be squared with Wong Sun because there is
no exploitation of the primary illegality, the evidence
instead being discovered by “exploitation” of the command
of the search warrant, not the manner of the entry, and
also cannot be squared with either inevitable discovery or
independent source principles. The short answer is that
but-for causation is a necessary but not sufficient requirement for application of the exclusionary rule, as these
doctrines demonstrate, and it is entirely missing here.
Petitioner’s single-minded devotion to exclusion even
in the absence of a causal connection between the police
64
65
Jones, at 716.
And in some unfortunate situations injuries may occur, and one
purpose of the announcement requirement is to avoid these; Respondent is not arguing that Wilson was wrong, but the issue here goes to
consequences in a criminal case from police error in this regard.
34
error and the discovery of evidence or contraband brings to
mind the adage that “when all you have is a hammer,
everything looks like a nail.” Though this Court has never
sought out “alternative sanctions” in other situations,
described above by Respondent, where but-for causation is
absent, Respondent would note that now, especially since
Wilson has recognized the constitutional status of announcement principles, civil remedies exist under 42
U.S.C. § 1983 for announcement violations. Such actions
66
are brought, and it is quite possible that principles of
66
See, e.g., Green v. Butler, ___ F.3d ___, 2005 WL 2018888 (CA 7,
2005) (reversing a grant of summary judgment, and finding no qualified
immunity for the unannounced entry); Kornegav v. Cottingham, 120
F.3d 392 (CA 3, 1997) (reversing grant of summary judgment in favor of
officers executing the warrant); Aponte Matos v. Toledo Davila, 135 F.3d
182 (CA 1, 1998) (finding qualified immunity but only because the
search took place prior to Wilson, and the officers were entitled to
immunity as they thus did not violate “clearly established constitutional law” in the manner of entry prior to Wilson, a holding which
would not obtain to entries after Wilson); Johnson v. City of Aiken, 217
F.2d 839 (CA 4, 2000) (unpublished opinion) (damages awarded but
reversed because of reasonable belief of danger); Johnson v. Deep East
Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293 (CA 5,
2005) (settlement reached with DEA agent involved in the entry);
Gould v. Davis, 165 F.3d 265 (CA 4, 1998) (defendants’ motion for
summary judgment on grounds of qualified immunity denied); Ingram
v. City of Columbus, 185 F.3d 579 (CA 6, 1999) (reversal of district
court’s grant of summary disposition on the knock and announce claim
and remanded); Smith v. Stone, 40 Fed. Appx. 197, 2002 WL 1478619
(CA 6, 2002) (denial of defendant’s motion for summary judgment on
claim of knock-and-announce violation and remand to the district
court); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179 (CA 10,
2001) (defendant’s motion for summary judgment denied – genuine
issue of material fact existed regarding whether there was a knock and
announce violation); Turner v. Tomey, 94 F. Supp. 2d 966 (Ind., 2000)
(summary judgment to officers denied); Early v. Bruno, 2001 WL
775968 (ND Ill., 2001) (summary judgment granted in part denied
in part regarding announcement claim); Michalik v. Herman, 2003
WL 2180537 (ED LA, 2003) (summary judgment for defendants in
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risk-management by governmental bodies are a greater
incentive to observance of constitutional principles than
exclusion of evidence. But employing the same “sanction”
where the police had every right to enter and to search
and seize, but entered too quickly, as when the police had
no right to invade premises and seize property at all,
simply makes no sense. In the latter situation privacy
should not have been invaded; in the former, the announcement failure, it has been invaded by a valid judicial
command. Only if knocking and announcing has as a
purpose that those inside should be given a fair opportunity
either to destroy the evidence sought or to injure the officers
executing the warrant does exclusion of the evidence in this
situation make sense. These violations are simply different
in kind, and Respondent submits that it is myopic to treat
them as though they were no different at all. Exclusion of
evidence where there has been an authorized invasion of
privacy and a proper discovery and seizure of evidence,
then, is not, Respondent submits, an appropriate sanction
for police error with regard to announcement of presence
and purpose. There is no element of “causality” involved.
The evidence is not the fruit of an announcement failure
because the invasion of privacy involved is completely
justified – and exclusion in this context makes no sense,
simply thwarting the enforcement of the law, and giving
unwarranted immunity to one in possession of drugs.
announcement claim denied). And it is not surprising if frequently such
actions fail, given that announcement may permissibly be foregone if
the officers have a reasonable suspicion that to announce would
frustrate the warrant, is a futile gesture, or is dangerous under the
circumstance of the particular case. Further, in cases like the present
one, where the officers simply opened the door, damages may be
virtually nonexistent.
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Exclusion is not designed to put the police in a worse
position than if the improper conduct had not occurred,
but to prevent them from being in a better position because of that conduct. The drugs found here were not the
67
fruit of any announcement violation. Again, if the search
warrant was proper and properly executed as to scope and
intensity of the search, then the only way the discovery of
contraband or evidence on the premises may be viewed as
“poison fruit” is to take the view that the failure to knock
and announce deprived those inside the opportunity to
destroy or successfully hide the evidence. One would hope
that no responsible society would take such a view. This
Court should repudiate such a principle.
---------------------------------♦---------------------------------
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Indeed, given that the exclusionary rule is not, as this Court has
repeatedly said, constitutionally mandated, Respondent questions
whether its forced application on a State that has chosen another path
in circumstances where the evidence sought to be suppressed was not
discovered as a result of the error of the police is a proper exercise of this
Court’s authority.
37
CONCLUSION
Wherefore, Respondent respectfully requests that this
Court affirm the Michigan Court of Appeals.
Respectfully submitted,
KYM L. WORTHY
Prosecuting Attorney
County of Wayne
TIMOTHY A. BAUGHMAN
Chief of Research,
Training and Appeals
1441 St. Antoine
Detroit, MI 48226
(313) 224-5792